Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Seattle Multimodal Project at Colman Dock in Washington State, 32895-32901 [2021-13154]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 118 (Wednesday, June 23, 2021)]
[Notices]
[Pages 32895-32901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13154]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB171]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Seattle Multimodal Project at 
Colman Dock in Washington State

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; request for comments on proposed Renewal incidental 
harassment authorization.

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SUMMARY: NMFS received a request from the Washington State Department 
of Transportation (WSDOT) for the Renewal of their currently active 
incidental harassment authorization (IHA) to take marine mammals 
incidental to Seattle Multimodal Project at Colman Dock in Seattle, 
Washington State. These activities consist of activities that are 
covered by the current authorization but will not be completed prior to 
its expiration. Pursuant to the Marine Mammal Protection Act, prior to 
issuing the currently active IHA, NMFS requested comments on both the 
proposed IHA and the potential for renewing the initial authorization 
if certain requirements were satisfied. The Renewal requirements have 
been satisfied, and NMFS is now providing an additional 15-day comment 
period to allow for any additional comments on the proposed Renewal not 
previously provided during the initial 30-day comment period.

DATES: Comments and information must be received no later than July 8, 
2021.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Written comments should be submitted 
via email to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. Attachments to comments will be 
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All 
comments received are a part of the public record and will generally be 
posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.

FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, Renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act (MMPA) prohibits the ``take'' of 
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) 
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce 
(as delegated to NMFS) to allow, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals by U.S. citizens 
who engage in a specified activity (other than commercial fishing) 
within a specified geographical region if certain findings are made and 
either regulations are proposed or, if the taking is limited to 
harassment, a notice of a proposed incidental take authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a Renewal for this activity, and 
requested public comment on a potential Renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-time one-year Renewal IHA following notice to the public providing 
an additional 15 days for public comments when (1) up to another year 
of identical or nearly identical, or nearly identical, activities as 
described in the Detailed Description of Specified Activities section 
of the initial IHA issuance notice is planned or (2) the activities as 
described in the Detailed Description of Specified Activities section 
of the initial IHA issuance notice would not be completed by the time 
the initial IHA expires and a Renewal would allow for completion of the 
activities beyond that described in the Dates and Duration section of 
the notice of issuance of the initial IHA, provided all of the 
following conditions are met:
    (1) A request for renewal is received no later than 60 days prior 
to the needed Renewal IHA effective date (recognizing that the Renewal 
IHA expiration date cannot extend beyond one year from expiration of 
the initial IHA);
    (2) The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested Renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take); and
     A preliminary monitoring report showing the results of the 
required

[[Page 32896]]

monitoring to date and an explanation showing that the monitoring 
results do not indicate impacts of a scale or nature not previously 
analyzed or authorized; and
    (3) Upon review of the request for Renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed Renewal. A description of the Renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any 
comments received on the potential Renewal, along with relevant 
comments on the initial IHA, have been considered in the development of 
this proposed IHA Renewal, and a summary of agency responses to 
applicable comments is included in this notice. NMFS will consider any 
additional public comments prior to making any final decision on the 
issuance of the requested Renewal, and agency responses will be 
summarized in the final notice of our decision.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA 
Renewal) with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has 
preliminarily determined that the issuance of the proposed IHA Renewal 
qualifies to be categorically excluded from further NEPA review. We 
will review all comments submitted in response to this notice prior to 
concluding our NEPA process or making a final decision on the IHA 
Renewal request.

History of Request

    On September 3, 2020, NMFS issued an IHA to WSDOT to take marine 
mammals incidental to the fourth year of work associated with the 
Seattle Multimodal Project at Colman Dock in Seattle, Washington (85 FR 
59737; September 23, 2020), effective from September 10, 2020 through 
September 9, 2021. The initial IHA covered one year of the larger 
project for which WSDOT obtained prior IHAs (82 FR 31579, July 7, 2017; 
83 FR 35226, July 25, 2018; 84 FR 36581, July 29, 2019). On March 18, 
2021, NMFS received an application for the Renewal of that initial IHA. 
As described in the application for Renewal IHA, the activities for 
which incidental take is requested consist of activities that are 
covered by the initial authorization but will not be completed prior to 
its expiration. As required, the applicant also provided a preliminary 
monitoring report (available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities) which confirms that the applicant has 
implemented the required mitigation and monitoring, and which also 
shows that no impacts of a scale or nature not previously analyzed or 
authorized have occurred as a result of the activities conducted.

Description of the Specified Activities and Anticipated Impacts

    WSDOT has requested incidental take for construction activities 
related to the Seattle Multimodal Project at Colman Dock in Seattle, 
Washington State. The activities addressed in this request represent a 
subset of the activities analyzed in the initial IHA, consisting of 
vibratory pile removal only, and are identical to the activities 
described in the initial IHA.
    Accordingly the proposed authorized take is for the same eleven 
species authorized in the initial IHA (see Table 4), and the amount of 
take is reflective of the take estimation methods described in the 
initial IHA applied to the remaining work described below.
    The following documents are referenced in this notice and include 
important supporting information:
     Initial 2020 final IHA (85 FR 59737; September 23, 2020);
     Initial 2020 proposed IHA (85 FR 40992; July 8, 2020); and
     Initial IHA application, references cited, marine mammal 
monitoring plan, preliminary monitoring report, and previous public 
comments received (available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities).

Detailed Description of the Activity

    A detailed description of the pile installation and removal 
activities for which take was authorized in the initial IHA may be 
found in the Federal Register notices of the proposed and final IHA for 
the initial authorization (85 FR 40992, July 8, 2020; 85 FR 59737, 
September 23, 2020). Only a subset of the construction activities 
remain to be conducted, and the location, timing, and nature of the 
activities, including the types of equipment planned for use, are 
identical to those described in the previous notices.
    Below and in Table 1 we describe the specific in-water pile driving 
and pile removal activities that were planned and already occurred 
under the initial IHA and those that remain to be completed under this 
renewal IHA:
     Vibratory driving followed by impact proofing (driving) of 
36-inch steel piles. A total of 73 piles were installed using the 
vibratory hammer over 9 days, with an average of approximately 8 piles 
installed per day. Vibratory pile driving and impact proofing occurred 
on different days;
     Vibratory driving and then removal of 24-inch temporary 
steel piles. A total of 30 piles were planned be installed and later 
removed, with an average of 8 piles installed/removed per day;
     Vibratory removal of 355 14-inch timber piles over 18 
days, with approximately 20 piles removed per day; and
     Vibratory removal of 30 12-inch steel piles over 3 days, 
with 10 piles removed per day.
    All vibratory and impact pile installation was completed. Only 
vibratory removal of timber and temporary steel piles remains to be 
completed (Table 1).

[[Page 32897]]



                                Table 1--Summary of Planned In-Water Pile Driving
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                                                                     Number of       Number of
                                                                   piles planned       piles         Number of
          Pile size and type                     Method                to be         completed      piles to be
                                                                   completed in    under initial   completed in
                                                                    initial IHA         IHA         IHA renewal
----------------------------------------------------------------------------------------------------------------
36-inch Steel.........................  Impact drive (proof)....            * 73              73               0
36-inch Steel.........................  Vibratory drive.........            * 73              73               0
24-inch Steel (temporary).............  Vibratory drive.........            * 30              30               0
24-inch Steel (temporary).............  Vibratory remove........            * 30               5              25
14-inch Timber........................  Vibratory remove........             355             316              39
12-inch Steel.........................  Vibratory remove........              30              30               0
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* These are same piles.

    The total estimated duration of pile driving activities planned in 
the initial IHA was 47 days. In consideration of the time required to 
remove each pile using a vibratory hammer and the number of piles that 
may be removed per day, a total of eight days of work remain to remove 
the rest of the timber piles and temporary steel piles (Table 2).
    Due to NMFS and U.S. Fish and Wildlife Service (USFWS) in-water 
work timing restrictions to protect Endangered Species Act (ESA)-listed 
salmonids, planned WSDOT in-water construction is limited each year to 
July 15 through February 15 at this location. For this project, in-
water construction is planned to take place between August 1, 2021 and 
February 15, 2022. The proposed Renewal would be effective from August 
1, 2021 through July 31, 2022.

                    Table 2--Estimated Duration of Remaining In-Water Vibratory Pile Removal
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                                                     Number of
               Pile size and type                      piles       Piles per day    Minutes per      Duration
                                                     remaining                         pile           (days)
----------------------------------------------------------------------------------------------------------------
24-inch steel...................................              25               8              20               4
14-inch timber..................................              39              10              15               4
----------------------------------------------------------------------------------------------------------------

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
Federal Register notice of proposed IHA for the initial authorization 
(85 FR 40992; July 8, 2020) and the Federal Register notice of proposed 
IHA for the Year 3 Seattle Multimodal Project at Colman Dock (84 FR 
25757; June 4, 2019) and. NMFS has reviewed the monitoring data from 
the initial IHA, recent draft Stock Assessment Reports, information on 
relevant Unusual Mortality Events, and other scientific literature, and 
determined that neither this nor any other new information affects 
which species or stocks have the potential to be affected or the 
pertinent information in the Description of the Marine Mammals in the 
Area of Specified Activities contained in the supporting documents for 
the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
proposed here may be found in the Federal Register notice of proposed 
IHA for the initial authorization (85 FR 40992; July 8, 2020). NMFS has 
reviewed the monitoring data from the initial IHA, recent draft Stock 
Assessment Reports, information on relevant Unusual Mortality Events, 
and other scientific literature, and determined that neither this nor 
any other new information affects our initial analysis of impacts on 
marine mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the Federal Register 
notices of proposed IHA (85 FR 40992; July 8, 2020) and final IHA (85 
FR 59737; September 23, 2020) for the initial authorization. 
Specifically, the source levels, corresponding Level A and Level B 
harassment zones (in m) and ensonified areas (in square kilometers 
(km\2\); Table 3), and marine mammal density/occurrence data applicable 
to this authorization remain unchanged from the previously issued IHA. 
Similarly, the stocks taken, methods of take, and types of take remain 
unchanged from the previously issued IHA. The only change from the 
methods used to estimate take in the initial IHA is the total duration 
(days) of pile driving activities, which has been reduced from a total 
of 47 days of activities, occurring over the course of seven months, in 
the initial IHA to 8 days of remaining activities estimated to occur 
within one month.

[[Page 32898]]



                                           Table 3--Level A and Level B Harassment Zones and Ensonified Areas
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Level A harassment distance (m)/area (km\2\)                       Level B
                                                         --------------------------------------------------------------------------------   harassment
          Pile type, size & pile driving method                                                                                            distance (m)/
                                                            LF cetacean     MF cetacean     HF cetacean       Phocid          Otariid      area (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory drive/removal, 24 inch steel piles............       96.6/0.03        8.6/0.00      142.8/0.06       58.7/0.01        4.1/0.00     8,690/40.53
Vibratory removal 14 inch timber pile...................        8.0/0.00        0.7/0.00       11.8/0.00        4.8/0.00        0.3/0.00      2,154/5.47
--------------------------------------------------------------------------------------------------------------------------------------------------------
LF = low-frequency; MF = mid-frequency; HF = high-frequency.

    Authorized takes would be by Level B harassment only, as use of the 
vibratory hammer has the potential to result in disruption of 
behavioral patterns for individual marine mammals. The initial IHA 
authorized take of harbor seals and harbor porpoises by Level A 
harassment from impact pile driving. However, as described in the 
initial IHA, based on the nature of the activity remaining in this 
Renewal (vibratory pile driving) and the anticipated effectiveness of 
the mitigation measures (i.e., shutdown, see Proposed Mitigation 
below), Level A harassment is neither anticipated from vibratory pile 
driving and is not proposed to be authorized here.
    As described in the initial IHA, the initial approach for take 
calculation was to use the information aggregated in the U.S. Navy 
Marine Species Density Database (U.S. Navy, 2019) with the following 
equation:

Total Take = marine mammal density x ensonified area x pile driving 
days

    However, also as described in the initial IHA, adjustments were 
made to all of these initial estimates based on prior observation of 
marine mammals in the project area and account for group numbers, and 
in fact most estimates were based on a predicted number of individuals 
entering the Level B harassment zone per month, with several estimates 
also based on a predicted number entering per day. Take estimates for 
the activities remaining in this renewal IHA were developed using the 
identical methods as the initial IHA, in consideration of the remaining 
8 days of work, and equated to one month where monthly estimates were 
used. Table 4 indicates the number of each species or stock proposed 
for authorization.

                     Table 4--Estimated Take Proposed To Be Authorized by Species and Stock
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                                        Total proposed                                 Stock        Percent of
                Species                      take                 Stock              abundance         stock
----------------------------------------------------------------------------------------------------------------
Gray whale............................               1  Eastern North Pacific...          26,960           0.004
Humpback whale........................               3  California/Oregon/                 2,900           0.103
                                                         Washington.
Minke whale...........................               1  California/Oregon/                   636           0.157
                                                         Washington.
Killer whale..........................              10  West Coast transient....             349           2.865
Bottlenose dolphin....................               7  California/Oregon/                 1,924           0.364
                                                         Washington offshore.
Harbor porpoise.......................             100  Washington inland waters          11,233           0.890
Dall's porpoise.......................               5  California/Oregon/                25,750           0.019
                                                         Washington.
Harbor seal...........................             720  Washington northern               11,036           6.524
                                                         inland waters.
Northern elephant seal................               1  California breeding.....         179,000           0.001
California sea lion...................             232  U.S.....................         257,606           0.090
Steller sea lion......................               8  Eastern U.S.............          43,201           0.019
----------------------------------------------------------------------------------------------------------------

    We have reviewed the preliminary monitoring report submitted by 
WSDOT and the monitoring results do not indicate impacts of a scale or 
nature not previously analyzed or authorized and, therefore, these 
estimates are appropriate.

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are identical to those 
included in the Federal Register notice announcing the issuance of the 
initial IHA (85 FR 59737; September 23, 2020), with the exception of 
mitigation measures specific to impact pile driving, which will not 
occur under this IHA. The discussion of the least practicable adverse 
impact included in that document remains accurate. The following 
measures are proposed for this renewal:
Proposed Mitigation
    Time Restriction--The applicant stated that work would occur only 
during daylight hours, when visual monitoring of marine mammals can be 
conducted. In addition, all in-water construction will be limited to 
the period between August 1, 2021, and February 15, 2022.
    Establishing and Monitoring Level A, Level B Harassment Zones, and 
Exclusion Zones--Before the commencement of in-water construction 
activities, which include vibratory pile removal, WSDOT shall establish 
Level A harassment zones where received underwater sound pressure 
levels (SPLs) or cumulative sound exposure levels (SELcum) 
could cause permanent threshold shift (PTS).
    WSDOT shall also establish Level B harassment zones where received 
underwater SPLs are higher than 120 decibels root-mean-square 
(dBrms) re 1 microPascal ([micro]Pa) for continuous noise 
sources (e.g., vibratory pile removal).
    WSDOT shall establish exclusion zones as shown in Table 5 to 
prevent Level A harassment takes of all marine mammal hearing groups.
    For in-water heavy machinery work other than pile driving (e.g., 
standard barges, etc.), if a marine mammal comes within 10 m, 
operations shall cease and vessels shall reduce speed to the minimum 
level required to maintain steerage and safe working conditions. This 
type of work could include the following activities: (1) Movement of 
the barge to the pile location; or (2) positioning of the pile on the 
substrate via a crane.

[[Page 32899]]

    WSDOT shall establish exclusion zones for Southern Resident killer 
whales (SRKW) and all marine mammals for which takes are not authorized 
at the Level B harassment distances. Specifically, for vibratory 
removal of 24-inch steel piles, a 8.7 km exclusion zone shall be 
established. For vibratory removal of 14-inch timber piles, a 2.2 km 
exclusion zone shall be established.
    A summary of exclusion zones is provided in Table 5.

                                                  Table 5--Exclusion Zones by Species and Hearing Group
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Exclusion distance (m)
                   Pile type and size                    -----------------------------------------------------------------------------------------------
                                                                LF              MF              HF            Phocid          Otariid          SRKW
--------------------------------------------------------------------------------------------------------------------------------------------------------
24-inch steel...........................................             100              10             150              60              10           8,700
14-inch timber..........................................              10              10              15              10              10           2,200
--------------------------------------------------------------------------------------------------------------------------------------------------------

    NMFS-approved protected species observers (PSOs) shall conduct an 
initial survey of the exclusion zones to ensure that no marine mammals 
are seen within the zones beginning 30 minutes before removal of a pile 
segment begins. If marine mammals are found within the exclusion zone, 
pile driving of the segment would be delayed until they move out of the 
area. If a marine mammal is seen above water and then dives below, the 
contractor would wait 15 minutes. If no marine mammals are seen by the 
observer in that time it can be assumed that the animal has moved 
beyond the exclusion zone.
    If pile driving of a segment ceases for 30 minutes or more and a 
marine mammal is sighted within the designated exclusion zone prior to 
commencement of pile removal, the observer(s) must notify the pile 
driving operator (or other authorized individual) immediately and 
continue to monitor the exclusion zone. Operations may not resume until 
the marine mammal has exited the exclusion zone or 15 minutes have 
elapsed since the last sighting.
    Shutdown Measures--WSDOT shall implement shutdown measures if a 
marine mammal is detected within or entering an exclusion zone listed 
in Table 5.
    WSDOT shall also implement shutdown measures if SRKW are sighted 
within the vicinity of the project area and are approaching the Level B 
harassment zone during in-water construction activities.
    If a killer whale approaches the Level B harassment zone during 
pile driving or removal, and it is unknown whether it is a SRKW or a 
transient killer whale, it shall be assumed to be a SRKW and WSDOT 
shall implement the shutdown measure.
    If a SRKW or an unidentified killer whale enters the Level B 
harassment zone undetected, in-water pile driving or pile removal shall 
be suspended until the whale exits the Level B harassment zone, or 15 
minutes have elapsed with no sighting of the animal, to avoid further 
Level B harassment.
    Further, WSDOT shall implement shutdown measures if the number of 
authorized takes for any particular species reaches the limit under the 
IHA (if issued) and if such marine mammals are sighted within the 
vicinity of the project area and are approaching the Level B harassment 
zone during in-water construction activities.
    Coordination with Local Marine Mammal Research Network--Prior to 
the start of pile driving for the day, WSDOT shall contact the Orca 
Network and/or Center for Whale Research to find out the location of 
the nearest marine mammal sightings. The Local Marine Mammal Research 
Network consists of a list of over 600 (and growing) residents, 
scientists, and government agency personnel in the United States and 
Canada. Sightings are called or emailed into the Orca Network and 
immediately distributed to other sighting networks including: the NMFS 
Northwest Fisheries Science Center, the Center for Whale Research, 
Cascadia Research, the Whale Museum Hotline and the British Columbia 
Sightings Network.
    Sightings information collected by the Orca Network includes 
detection by hydrophone. The SeaSound Remote Sensing Network is a 
system of interconnected hydrophones installed in the marine 
environment of Haro Strait (west side of San Juan Island) to study orca 
communication, in-water noise, bottom fish ecology and local climatic 
conditions. A hydrophone at the Port Townsend Marine Science Center 
measures average in-water sound levels and automatically detects 
unusual sounds. These passive acoustic devices allow researchers to 
hear when different marine mammals come into the region. This acoustic 
network, combined with the volunteer (incidental) visual sighting 
network allows researchers to document presence and location of various 
marine mammal species.
Proposed Monitoring and Reporting
    Monitoring Measures--WSDOT shall employ NMFS-approved PSOs to 
conduct marine mammal monitoring for its Seattle Multimodal Project at 
Colman Dock. The PSOs will observe and collect data on marine mammals 
in and around the project area for 30 minutes before, during, and for 
30 minutes after all pile removal and pile installation work. NMFS-
approved PSOs shall meet the following requirements:
    1. Independent observers (i.e., not construction personnel) are 
required;
    2. At least one observer must have prior experience working as an 
observer;
    3. Other observers may substitute education (undergraduate degree 
in biological science or related field) or training for experience;
    4. Where a team of three or more observers are required, one 
observer should be designated as lead observer or monitoring 
coordinator. The lead observer must have prior experience working as an 
observer; and
    5. NMFS will require submission and approval of observer Curriculum 
Vitas;
    Monitoring of marine mammals around the construction site shall be 
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power). 
Due to the different sizes of zones of influence (ZOIs) from different 
pile sizes, several different ZOIs and different monitoring protocols 
corresponding to a specific pile size will be established. During 
vibratory removal of 24-inch steel piles, four land-based PSOs and one 
ferry-based PSO will monitor the zone. During vibratory removal of 14-
inch timber piles, four land-based PSOs will monitor the zone. 
Locations of the land-based PSOs and routes of monitoring vessels are 
shown in WSDOT's Marine Mammal Monitoring Plan, which is available 
online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
    To verify the required monitoring distance, the exclusion zones and 
zones of influence will be determined by using

[[Page 32900]]

a range finder or hand-held global positioning system device.
    Reporting Measures--WSDOT is required to submit a draft report on 
all marine mammal monitoring conducted under the IHA (if issued) within 
90 calendar days of the completion of the project. A final report shall 
be prepared and submitted within 30 days following resolution of 
comments on the draft report from NMFS.
    The marine mammal report must contain the informational elements 
described in the Marine Mammal Monitoring Plan for the initial IHA, 
dated May 12, 2020, including, but not limited to:
    1. Dates and times (begin and end) of all marine mammal monitoring;
    2. Construction activities occurring during each daily observation 
period, including how many and what type of piles were driven or 
removed;
    3. Weather parameters and water conditions during each monitoring 
period (e.g., wind speed, percent cover, visibility, sea state);
    4. The number of marine mammals observed, by species, relative to 
the pile location and if pile driving or removal was occurring at time 
of sighting;
    5. Age and sex class, if possible, of all marine mammals observed;
    6. PSO locations during marine mammal monitoring;
    7. Distances and bearings of each marine mammal observed to the 
pile being driven or removed for each sighting (if pile driving or 
removal was occurring at time of sighting);
    8. Description of any marine mammal behavior patterns during 
observation, including direction of travel and estimated time spent 
within the Level B harassment zones while the source was active;
    9. Number of individuals of each species (differentiated by month 
as appropriate) detected within the monitoring zone;
    10. Detailed information about any implementation of any mitigation 
triggered (e.g., shutdowns and delays), a description of specific 
actions that ensued, and resulting behavior of the animal, if any;
    11. Description of attempts to distinguish between the number of 
individual animals taken and the number of incidences of take, such as 
ability to track groups or individuals; and
    12. Submit all PSO datasheets and/or raw sighting data (in a 
separate file from the Final Report referenced immediately above).
    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, WSDOT shall report the 
incident to the Office of Protected Resources (OPR) (301-427-8401), 
NMFS and to the West Coast Region (WCR) regional stranding coordinator 
(1-866-767-6114) as soon as feasible. If the death or injury was 
clearly caused by the specified activity, WSDOT must immediately cease 
the specified activities until NMFS is able to review the circumstances 
of the incident and determine what, if any, additional measures are 
appropriate to ensure compliance with the terms of the IHA. WSDOT must 
not resume their activities until notified by NMFS.
    The report must include the following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and
    6. General circumstances under which the animal was discovered.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (85 
FR 40992; July 8, 2020) and solicited public comments on both our 
proposal to issue the initial IHA for the Seattle Multimodal Project at 
Colman Dock and on the potential for a Renewal IHA, should certain 
requirements be met.
    All public comments were addressed in the notice announcing the 
issuance of the initial IHA (85 FR 59737; September 23, 2020). Below, 
we describe how we have addressed, with updated information where 
appropriate, any comments received that specifically pertain to the 
Renewal of the initial 2020 IHA.
    Comment: The Marine Mammal Commission recommended that NMFS refrain 
from issuing renewals for any authorization and instead use its 
abbreviated Federal Register notice process, which is similarly 
expeditious and fulfills NMFS's intent to maximize efficiencies.
    Response: In prior responses to comments about IHA Renewals (e.g., 
84 FR 52464; October 02, 2019 and 85 FR 53342, August 28, 2020), NMFS 
has explained how the Renewal process, as implemented, is consistent 
with the statutory requirements contained in section 101(a)(5)(D) of 
the MMPA, provides additional efficiencies beyond the use of 
abbreviated notices, and, further, promotes NMFS' goals of improving 
conservation of marine mammals and increasing efficiency in the MMPA 
compliance process. Therefore, we intend to continue implementing the 
Renewal process.

Preliminary Determinations

    The construction activities proposed by WSDOT are a subset of, and 
identical to, those analyzed in the initial IHA, and the method of 
taking and the effects of the action are identical to the initial IHA 
(though the amount of proposed authorized take is notably lower). The 
potential effects of WSDOT's activities are limited to Level B 
harassment in the form of behavioral disturbance. In analyzing the 
effects of the activities in the 2020 IHA, NMFS determined that WSDOT's 
activities would have a negligible impact on the affected species or 
stocks and that the authorized take numbers of each species or stock 
were small relative to the relevant stocks (e.g., less than one-third 
of all stocks). The mitigation measures and monitoring and reporting 
requirements as described above are identical to the initial IHA.
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. Based on the information and analysis 
contained here and in the referenced documents, NMFS has determined the 
following: (1) The required mitigation measures will effect the least 
practicable impact on marine mammal species or stocks and their 
habitat; (2) the authorized takes will have a negligible impact on the 
affected marine mammal species or stocks; (3) the authorized takes 
represent small numbers of marine mammals relative to the affected 
stock abundances; (4) WSDOT's activities will not have an unmitigable 
adverse impact on taking for subsistence purposes as no relevant 
subsistence uses of marine mammals are implicated by this action, and; 
(5) appropriate monitoring and reporting requirements are included.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally, in this case with the West Coast Region 
Protected Resources Division, whenever

[[Page 32901]]

we propose to authorize take for endangered or threatened species.
    The only species listed under the ESA with the potential to be 
present in the action area are the Mexico Distinct Population Segment 
(DPS) and Central America DPS of humpback whales. The effects of this 
Federal action were adequately analyzed in NMFS' Biological Opinion for 
the Seattle Multimodal Project at Colman Dock, Seattle, Washington, 
dated October 1, 2018, which concluded that issuance of an IHA would 
not jeopardize the continued existence of any endangered or threatened 
species or destroy or adversely modify any designated critical habitat.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a Renewal IHA to WSDOT to conduct the Seattle Multimodal Project 
at Colman Dock Year 4 in Washington State, between August 1, 2021 and 
July 31, 2022, provided the previously described mitigation, 
monitoring, and reporting requirements are incorporated. A draft of the 
proposed and final initial IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We request comment on our analyses, the 
proposed Renewal IHA, and any other aspect of this Notice. Please 
include with your comments any supporting data or literature citations 
to help inform our final decision on the request for MMPA 
authorization.

    Dated: June 17, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-13154 Filed 6-22-21; 8:45 am]
BILLING CODE 3510-22-P